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Indian Laws - Case Laws
Showing 81 to 100 of 26744 Records
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2024 (10) TMI 786
Extension of benefit of NFU Scheme to Group-B Officers of the petitioner-association - HELD THAT:- The learned Tribunal has not properly appreciated the contentions advanced in the OA. While no merits expressed on the entitlement of the petitioners to the relief sought by them, it was incumbent on the learned Tribunal to examine the petitioners’ prayer for extension of the benefit of NFU Scheme to Group-B Officers of the petitioner-association on merits, and return a finding of the prayer, one way or the other. That has not been done.
The impugned order cannot be sustained, and is accordingly quashed and set aside - Application stands remitted to the learned Tribunal for decision afresh in accordance with law, after extending an opportunity to all parties concerned.
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2024 (10) TMI 785
Extension of benefit of NFU Scheme to Group-B Officers of the petitioner-association - HELD THAT:- The learned Tribunal has not properly appreciated the contentions advanced in the OA. While no merits expressed on the entitlement of the petitioners to the relief sought by them, it was incumbent on the learned Tribunal to examine the petitioners’ prayer for extension of the benefit of NFU Scheme to Group-B Officers of the petitioner-association on merits, and return a finding of the prayer, one way or the other. That has not been done.
The impugned order cannot be sustained, and is accordingly quashed and set aside - Application stands remitted to the learned Tribunal for decision afresh in accordance with law, after extending an opportunity to all parties concerned.
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2024 (10) TMI 784
Extension of benefit of NFU Scheme to Group-B Officers of the petitioner-association - HELD THAT:- The learned Tribunal has not properly appreciated the contentions advanced in the OA. While no merits expressed on the entitlement of the petitioners to the relief sought by them, it was incumbent on the learned Tribunal to examine the petitioners’ prayer for extension of the benefit of NFU Scheme to Group-B Officers of the petitioner-association on merits, and return a finding of the prayer, one way or the other. That has not been done.
The impugned order cannot be sustained, and is accordingly quashed and set aside - Application stands remitted to the learned Tribunal for decision afresh in accordance with law, after extending an opportunity to all parties concerned.
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2024 (10) TMI 718
Stay of criminal proceedings under Section 138/141 of the Negotiable Instruments Act due to insolvency proceedings under the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- Upon considering the facts of the case and the provisions laid down in Section 94 and 96 of the Insolvency And Bankruptcy Code, 2016, this court is of the view that even if an accused does not appear before the learned trial court when such order passed by the learned tribunal is within the knowledge of the complainant, such fact should be brought to the notice of the learned Magistrate.
Mhe Hon’ble Punjab and Haryana High Court in the case of Vijay Kumar Ghai [2022 (8) TMI 477 - PUNJAB & HARYANA HIGH COURT] has observed that by virtue of the term in legal actions or proceedings in respect of any date as per Section 96 and proceedings under Section 138 of the Act would be deemed to be stayed irrespective of the fact that such proceedings were initiated far before the application under Section 94 of the Code was filed by the personal guarantor of the Corporate debtor.
This revisional application is admitted.
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2024 (10) TMI 675
Suit for partition and separate possession of her share in the plaint schedule 13 items of immovable properties - independent right, title or interest in the property - HELD THAT:- Once an application under Order 21 Rule 99 is filed, it is incumbent upon the Trial Court to consider all the rival claims including the right title and interest of the parties under Order 21 Rule 101 which bars a separate suit by mandating the execution court to decide the dispute.
As regards the question of limitation for execution of a decree passed in the suit for partition, this Court, in the decision in Chiranji Lal [2005 (5) TMI 689 - SUPREME COURT], has categorically held that the time begins to run from the date of final decree and not from the date on which it is engrossed on the stamp paper.
Applying the ratio laid down in Chiranjilal case to the facts of the present case, the High Court rightly set aside the order passed in the Execution Petition and remanded the matter to the trial court for fresh consideration, leaving all the issues including the independent right, title or interest claimed by the respondents in the property in question, to be adjudicated therein - Appeal dismissed.
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2024 (10) TMI 674
Suit for specific performance of the agreement dismissed - suit decreed partially only for the alternative relief of recovery - doctrine of lis pendens - whether the agreement dated 17.08.1990 is a result of fraud and collusion, therefore, not binding on defendant no. 1? - HELD THAT:- In the case at hand, the Trial Court had partly decreed the suit to the extent of recovery of Rs. 40,000/-. This part of the decree was not challenged by the defendants either by filing a separate appeal or by way of cross objections. They did not prefer any cross objection challenging the finding on issue no. 5. In this situation the defendants have conceded to the decree for refund and finding on issue no. 5. Therefore, in absence of cross-appeal or cross-objections by the defendants, the First Appellate Court could not have recorded a finding that the subject agreement was a result of collusion between the plaintiff and defendant no. 1.
In Usha Sinha vs. Dina Ram [2008 (3) TMI 753 - SUPREME COURT] this Court held that the doctrine of lis pendens applies to an alienation during the pendency of the suit whether such alienees had or had no notice of the pending proceedings.
This Court in Sanjay Verma vs. Manik Roy [2006 (12) TMI 559 - SUPREME COURT] was dealing with a suit for specific performance. During pendency of the suit, a temporary injunction was granted in favour of the plaintiff and different portions of the suit land were sold whereafter the purchasers applied for impleadment, which was rejected by the Trial Court but allowed by the High Court against which special leave to appeal was filed.
In the case in hand also, it is an admitted position that the suit was filed on 24.12.1992 and the sale deed was executed on 08.01.1993 by defendant no. 1 in favour of defendant no. 2/appellant during pendency of the suit. The doctrine of lis pendens as contained in Section 52 of the Transfer of Property Act, 1882 applies to a transaction during pendency of the suit - The plaintiff was non-suited only on the ground that defendant no. 2 had no notice of the agreement and is a bona fide purchaser. However, once sale agreement is proved and the subsequent sale was during pendency of the suit hit by the doctrine of lis pendens, the High Court was fully justified in setting aside the judgment and decree of the Trial Court and the First Appellate Court and passing a decree for specific performance.
The High Court has not committed any error of law in rendering the judgment impugned which is hereby affirmed and the instant appeal deserves to be and is hereby dismissed.
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2024 (10) TMI 673
Dishonour of cheque - existence of a legally enforceable debt or liability - rebuttal of presumptin u/s 118 and 139 of the Negotiable Instruments Act - conviction u/s 138 of the Negotiable Instruments Act - HELD THAT:- In the case at hand, complainant while examining himself as CW-1, tendered evidence by way of affidavit Ex.CW1/A wherein he successfully reiterated the contents of the complaint. If the crossexamination conducted upon complainant is perused in its entirety, it cannot be said accused was able to extract something contrary to what this witness stated in his examination-in-chief. As has been observed hereinabove, accused though attempted to carve out a case that he had already paid sum of Rs.8,00,000/- against sum of Rs.2,00,000/-, but since there is no mention, if any, of the Cheque in question on the receipt Mark DX1, adduced on record by the accused to prove factum with regard to his having repaid entire amount, Courts below rightly held accused guilty of his having committed offence punishable under Section 138 of the Act - there is no evidence worth credence suggestive of the fact that Cheque in question was issued as a security, but even if it is presumed that Cheque in question was issued as a security, that may not be of much help to the accused for the reason that by now it is well settled that Cheque, if any, issued as a ‘security’ can also be presented for encashment, if amount taken or promised to be repaid is not paid.
This Court finds that all the basic ingredients of Section 138 of the Act are met in the case at hand. Since Cheque issued by accused towards discharge of his lawful liability was returned on account of insufficient funds in the bank account of accused and he despite having received legal notice failed to make the payment good within the stipulated time, complainant had no option but to institute proceedings under Section 138 of the Act, which subsequently rightly came to be decided by both the Courts below on the basis of pleadings as well as evidence adduced on record by the respective parties.
Since after having carefully examined the evidence in the present case, this Court is unable to find any error of law as well as fact, if any, committed by the Courts below, while passing impugned judgments, there is no occasion, whatsoever, to exercise the revisional power.
The present criminal revision petition is dismissed being devoid of any merit.
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2024 (10) TMI 614
Dishonour of cheque - money lending or investment - Applicability and interpretation of the Bengal Money Lenders Act, 1940 in relation to Section 138 of the Negotiable Instruments Act, 1881 - legally enforceable debt or investment of money into business - specific overt act has been alleged or attributed against the petitioner for the commission of alleged offence or not - sufficient ingredient for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 in the complaint or not - HELD THAT:- As per explanation to Section 138 of the Negotiable Instruments Act “debt or other liability” means a legally enforceable debt or other liability. So, a loan advanced by a money lender who is doing business of money lending without licence is not a debt or other liability and provisions of Section 138 of the Act will not apply to such transaction. In the light of above, the legal position is only applicable to the case, which falls under the provision of Bombay Money Lenders Act, 1946. But, the present case falls under the provision of Bengal Money Lenders Act, 1940 and those cases’ circumstances are totally different.
The Hon’ble Supreme Court in the case Electronics Trade & Technology Development Corporation Ltd., Secunderabad v. Indian Technologists & Engineers (Electronics) (P) Ltd. [1996 (1) TMI 398 - SUPREME COURT] observed that the object of bringing section 138 on statute appears to inculcate the faith in the efficacy of banking operations and credibility in transacting business on negotiable instruments and section 138 intended to prevent dishonesty on the part of the drawer of negotiable instrument to draw a cheque without sufficient funds in his account maintained by him in a book and induce the payee or holder in due course to act upon it.
The Bengal Money Lenders Act, 1940 and Chapter XVII of the Negotiable Instruments Act, 1881 which was incorporated by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 for providing penalties in case of dishonour of cheques with an objective to encourage the culture of use of cheques and enhancing the credibility of the instrument. Both statutory provisions were enacted with different objectives and intent and are operational in independent and separate legal spheres - There is no apparent conflict between provisions of the Bengal Money Lenders Act, 1940 which is not apparently bars civil remedy for a money lender who is not having valid licence or certificate for doing business of money lending and Chapter XVII of the Act which provides criminal remedies and penalties in case of dishonour of a cheque due to reasons as mentioned in section 138 of the Act.
It is acceptable proposition of law that provisions of the Bengal Money Lenders Act, 1940 does not limit operation of section 138 of the Act and both are independent and mutually exclusive to each other. If a person advances a loan even without having a valid money lending licence or certificate, he can institute and prosecute complaint under section 138 of the Act on basis of cheques and he has to satisfy only the mandatory requirements of section 138 of the Act.
There are no merits in arguments advanced by the counsel for the petitioner that without money lending license a complaint cannot be filed under the N.I. Act and the complaint can be decided without evidence being led to show that petitioner was a Money Lender. The arguments advanced by the counsel for the Petitioner on aforesaid issues are without any legal basis and are legally unsustainable. Therefore, there is insufficient reason placed before this Court that no proceedings can be initiated or continued and it would be gross abuse of process of law.
The Criminal Revisional application filed by the petitioner has devoid of merits - revision dismissed.
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2024 (10) TMI 613
Dishonour of Cheque - Prayer for mandatory injunction to direct the petitioner/defendant to return all the blank cheques - permanent injunction to restrain the petitioner/defendant from encashing the said blank cheques by presenting into the bank - to restrain the petitioner/defendant from disturbing the plaintiffs/respondents 1 to 3 doing their business in the suit property - HELD THAT:- On perusal of the judgment of the Apex Court in M/s. Frost International Limited vs. M/s. Milan Developers and Builders (P) Limited and another [2022 (4) TMI 195 - SUPREME COURT], relied on by the learned counsel for the petitioner, it appears that it is squarely applicable to the facts of the present case, where it was held that 'we hold that while the plaintiff has certain grievances arising from the MoU, against the defendants which may give rise to seek appropriate remedies in law, the aforesaid three declaratory reliefs sought in the plaint are barred by law. Hence, the plaint is liable to be rejected in exercise of jurisdiction under Order VII Rule 11 CPC.'
This Court holds that if the plaintiffs have any grievance against the defendant, they can seek appropriate remedies in law, but the reliefs sought in the plaint are barred by law. Hence, the plaint is liable to be rejected.
The Civil Revision Petition is allowed.
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2024 (10) TMI 612
Seeking grant of pre-arrest bail - extracting the money from the truck owners or the drivers, under threat, impersonating themselves as GST officers - whether in each case a notice under Section 41A of the Criminal Procedure Code is mandatory? - HELD THAT:- Section 41 of the Criminal Procedure Code provides for time and situation when the police may arrest the accused without a warrant. The first condition is that the offence should be cognizable. Second would be the term of the conviction with imprisonment for a term which may be less than seven years or which may extend to seven years or with fine. Further, for such an arrest, the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence.
In the concluding part of Satender Kumar [2022 (8) TMI 152 - SUPREME COURT], the Hon’ble Supreme Court issued certain directions. It has been reiterated that the investigating agencies and officers are duty-bound to comply with the mandate of Section 41 and 41A of the Code and directions issued by this Court in Arnesh Kumar [2014 (7) TMI 1143 - SUPREME COURT]. Any dereliction on their part has to be brought to the notice of the higher authorities by the Court, followed by appropriate action.
Reading Section 41A read with Section 41 of the Criminal Procedure Code and the law laid down by the Hon’ble Supreme Court in the above cases, it is clear that for every such offence mentioned in Section 41 of the Criminal Procedure Code, a notice of appearance as provided under Section 41A of the Criminal Procedure Code is not essential, unless the investigation officer is satisfied that the arrest of accused is not required as contemplated under Section 41 of the Criminal Procedure Code.
The charge sheet is filed against the applicant, showing him absconding. The police have not yet disclosed what is the direct material against the applicant, but other concerned material has shown the nexus of the applicant with the crime. The offence is apparently serious. The offence was committed with the help of police personnel and by using government police vehicles. It is a matter of safety of the businessman and the common man. The Court is agreeable with the arguments of the learned APP for the State that there are reasons to believe that the arrest of the applicant is required. Hence, notice under Section 41A may be dispensed with in this case.
It seems that the learned counsel for the applicant has tried to take benefit of the ratio laid down by the Hon’ble Supreme Court in the case of Satender Kumar and Arnesh Kumar, which is not applicable to the case at hand. Considering the nature of the offence, and how it has been committed is discovered, the Court is of the view that this is not a fit case to exercise discretion under Section 438 of the Criminal Procedure Code.
The application stands dismissed.
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2024 (10) TMI 555
Suit for money due under a dishonoured cheque was decreed by the trial court - correctness of findings of the trial court with regard to the due execution of Ext.A1 cheque and the drawing of presumption under Section 118(a) of the N.I. Act - failure to rebut the presumption under Section 118(a) of the N.I. Act based on the evidence.
Do the findings of the trial court with regard to the due execution of Ext.A1 cheque and the drawing of presumption under Section 118(a) of the N.I. Act warrant any interference? - HELD THAT:- The plaintiff as PW1, has categorically deposed about the execution and issuance of Ext.A1 cheque by the defendant. He has asserted about the signing of the cheque by the defendant in his presence. There is no other witness, for such execution and issuance - When PW1 is cross examined there is no suggestion that the signature in Ext.A1 is not that of the defendant. No steps were taken by her to have an expert opinion obtained regarding the signature on Ext.A1. We are in agreement with the finding of the trial court that the plaintiff has proved the due execution of the cheque.
The execution of the cheque having been proved, the plaintiff is entitled for the benefit of the presumption under Section 118(a) of the N.I. Act that, the instrument is supported by consideration. The burden is on the defendant to rebut the presumption. The trial court was right in holding so.
Is the finding of the trial court that the defendant failed to rebut the presumption under Section 118(a) of the N.I. Act based on the evidence in the case? - HELD THAT:- Admittedly there were financial dealings between the plaintiff and the husband of the defendant while they were abroad. Ext.B2 is the agreement executed between the plaintiff and the husband of the defendant regarding the same. Ext.B2 and the transaction thereunder is admitted by both parties. According to the defendant, the liability under Ext.B2 was paid off, and the original of Ext.B2 was got returned - The cheque was dishonoured for insufficiency of funds. Though it is claimed that the liability under Ext.B2 agreement was discharged, there is no evidence to prove such discharge - the finding of the trial court that the evidence on record is insufficient to rebut the presumption of consideration under Section 118(a) of the N.I. Act, is justified.
On the evidence on record, the conclusions arrived at by the trial court are plausible. There is no sufficient material to upturn the findings of the trial court.
The trial court has granted interest only at the rate of 6% per annum from the date of suit which is reasonable and warrants no interference - Appeal dismissed.
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2024 (10) TMI 554
Dishonour of Cheque - petitioner-accused is not coming forward to deposit the amount - existence of a legally enforceable debt or liability - failure to lead any evidence - presumption under Sections 118 and 139 of the Negotiable Instruments Act - HELD THAT:- This Court finds that both the Courts below have dealt with each and every aspect of the matter meticulously and there is no scope left for this Court to interfere. Interestingly, in the case at hand, at no point of time, factum with regard to issuance of cheque as well as signature thereupon ever came to be refuted by the accused, rather she attempted to carve out a case that she had only borrowed sum of Rs. 2,00,000/-, which was returned, but cheques obtained as security by the complainant were misused. Since aforesaid defence sought to be raised was never probablized by leading cogent and convincing evidence, both the Courts below rightly invoked Sections 118 and 139 of the Act, which speak about presumption in favour of holder of cheque that cheque in question was issued towards discharge of lawful liability. No doubt, aforesaid presumption is rebuttable, but to rebut such presumption, accused is required to raise probable defence. Despite sufficient opportunity, accused failed to lead any evidence.
In the instant case, neither accused could show in his pleadings as well as evidence of the complainant that sum of Rs. 6,50,000/- was never borrowed by her, rather she had taken only Rs. 2,00,000/-, which was also returned nor she lead any positive evidence to probabalize aforesaid defence set up by her.
The Hon’ble Apex Court in M/S LAXMI DYECHEM VERSUS STATE OF GUJARAT & ORS. [2012 (12) TMI 106 - SUPREME COURT], has categorically held that if the accused is able to establish a probable defence, which creates doubt about the existence of a legally enforceable debt or liability the prosecution can fail. To raise probable defence, accused can rely on the materials submitted by the complainant. Needless to say, if the accused/drawer of the cheque in question neither raises a probable defence nor is able to contest existence of a legally enforceable debt or liability, statutory presumption under Section 139 of the Negotiable Instruments Act, regarding commission of the offence comes into play.
Factum with regard to issuance of cheques as well as signatures thereupon stands duly established and as such, no illegality can be said to have been committed by the learned Court below, while invoking Sections 118 and 139 of the Act. In his cross-examination, CW1 admitted that he has transferred Rs. 2,00,000/- to the accused. He also admitted that his 2-3 cases of dishonour of cheques are pending adjudication in the Court. However, he denied that accused demanded cheques after returning the borrowed amount.
This Court sees no reason to interfere with the well reasoned judgments recorded by the Courts below, which otherwise, appear to be based upon proper appreciation of evidence available on record and as such, same are upheld.
The present criminal revision petition is dismissed being devoid of any merit. The petitioner is directed to surrender before the learned trial Court forthwith to serve the sentence as awarded by the learned trial Court, if not already served. Interim direction, if any, stands vacated.
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2024 (10) TMI 498
Decree for payment of money granted by the trial Court - suit for recovery of amount allegedly due under a promissory note - rebuttal of presumption - Whether the trial Court was justified in invoking the presumption without adverting to the conflicts and contradictions in the evidence of PW1 and PW2 as well as between the proof affidavits filed in chief examination and the cross examination of the plaintiff as PW1?
HELD THAT:- Section 118 of the Negotiable Instruments Act, 1881, enacts the presumption as to consideration once the execution of the promissory note is admitted, but the said presumption is rebuttable.
In T. MOHAN KUMAR VERSUS R. ASOK KUMAR [2023 (12) TMI 1358 - MADRAS HIGH COURT], this Court after referring to the judgments in Bharat Barrel & Drum Manufacturing Company's case [1999 (2) TMI 627 - SUPREME COURT] and Hiralal vs. Badkulal [1953 (3) TMI 36 - SUPREME COURT], wherein, the Supreme Court had held that the defendant may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again to the plaintiff, had held that direct evidence of absence of consideration is not the only mode of proving absence of consideration. Surrounding circumstances and probabilities can also be relied upon by the Court to non suit the plaintiff on the ground of absence of consideration.
A holistic reading of the evidence of PW1 and PW2 impels us to believe the version of the defendant. Once it is found that the version in defence is more probable, it is necessary to look for something more than the mere oral evidence of PW1 to establish the passing of consideration. Unfortunately for the plaintiff, the evidence of PW2 is also not very helpful. His evidence contradicts the evidence of the plaintiff. Therefore, it is clear that the plaintiff has not established passing of consideration and the presumption under Section 118 stood rebutted by the prevailing circumstances. The findings of the trial Court which do not reflect the impact of the evidence on record, are not sustained.
The Appeal Suit stands allowed with costs.
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2024 (10) TMI 497
Grant of regular bail - inordinate delay of six days in lodging the instant FIR - supply of intoxicant goods - dismissal of the instant petition on the ground that the petitioner is a habitual offender as he is involved in two more cases - right to speedy trial - HELD THAT:- This Court is conscious of the basic and fundamental principle of law that right to speedy trial is a part of reasonable, fair and just procedure enshrined under Article 21 of the Constitution of India. This constitutional right cannot be denied to the accused as is the mandate of the Apex court in Hussainara Khatoon and ors (IV) v. Home Secretary, State of Bihar, Patna [1979 (3) TMI 215 - SUPREME COURT]. Besides this, reference can be drawn upon that pre-conviction period of the under-trials should be as short as possible keeping in view the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
This Court has held that no doubt, at the time of granting bail, the criminal antecedents of the petitioner are to be looked into but at the same time it is equally true that the appreciation of evidence during the course of trial has to be looked into with reference to the evidence in that case alone and not with respect to the evidence in the other pending cases. In such eventuality, strict adherence to the rule of denial of bail on account of pendency of other cases/convictions in all probability would land the petitioner in a situation of denial of concession of bail.
The petitioner is hereby directed to be released on regular bail on his furnishing bail and surety bonds to the satisfaction of the trial Court/Duty Magistrate, concerned - petition allowed.
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2024 (10) TMI 377
Dishonor of Cheque - challenge to judgment of acquittal - presumption that the cheque was issued in discharge of legal liability and the burden is upon the accused to prove the contrary - HELD THAT:- It was laid down by the Hon’ble Supreme Court in Mallappa v. State of Karnataka, [2024 (2) TMI 1391 - SUPREME COURT] that while deciding an appeal against acquittal, the High Court should see whether the evidence was properly appreciated on record or not; second whether the finding of the Court is illegal or affected by the error of law or fact and thirdly; whether the view taken by the Trial Court was a possible view, which could have been taken based on the material on record. The Court will not lightly interfere with the judgment of acquittal. It was observed 'The presumption continues at all stages of the trial and finally culminates into a fact when the case ends in acquittal. The presumption of innocence gets concretised when the case ends in acquittal. It is so because once the trial court, on appreciation of the evidence on record, finds that the accused was not guilty, the presumption gets strengthened and a higher threshold is expected to rebut the same in appeal.'
In the present case, the accused has not examined himself to prove that he had issued the cheque as security; rather he examined his driver Roop Lal (DW-1) and Baldev (DW-2) regarding the snatching of the vehicle. Therefore, the version of the complainant that he had issued a blank cheque as a security has not been proved on record.
In the present case, the statement of account (Ex.CW1/M) shows that the amount of ₹94,135/- was due on 11.06.2008. The cheque was issued for ₹94,135/- on 18.04.2008 which means that the accused had a subsisting liability of ₹94,135/- on the date of issuance of the cheque. Even if a blank cheque was issued by the accused as a security, the complainant had sufficient authority to fill the amount and present it before the Court since the amount of ₹94,135/- was due on 18.04.2008. It was laid down by the Hon’ble Supreme Court in Bir Singh v. Mukesh Kumar [2019 (2) TMI 547 - SUPREME COURT], that a person is liable for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act even if the cheque is filled by some other person.
Hon’ble Supreme Court held in Rohit bhai Jivanlal Patel v. State of Gujarat [2019 (3) TMI 769 - SUPREME COURT] that once the presumption had been drawn, the onus shifted to the accused and unless the accused discharged the onus, any doubt on the complainant’s case could not have been raised for want of evidence regarding the source of fund or non- examination of the witnesses.
The complaint could not have been dismissed on the ground that the presumption did not extend to the existence of legally enforceable debt or liability - the accused would be liable for the commission of an offence punishable under Section 138 of N.I. Act when the cheque was dishonoured with an endorsement of the account closed.
The complainant stated that a notice (Ex.CW1/H) was issued to the accused by registered post as well as a postal certificate. The registered letter (Ex.CW1/L) was returned with an endorsement ‘refused’. Thus, the same was deemed to have been delivered to the accused. Further, the complainant stated that the registered letter sent by UPC was not returned, therefore, the same is presumed to have been served upon the accused. It was laid down by the Hon’ble Supreme Court in C.C. Alavi Haji v.Palapetty Muhammed [2007 (5) TMI 335 - SUPREME COURT] that when the registered letter containing the notice is returned unserved with the endorsement of refused, the notice is deemed to have been served.
The ingredients of Section 138 of the Negotiable Instrument Act were duly satisfied in the present case and the learned Trial Court erred in acquitting the accused.
The judgment passed by the learned Trial Court is set aside. The accused is convicted of the commission of an offence punishable under Section 138 of N.I. Act - Appeal allowed.
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2024 (10) TMI 319
Dishonour of Cheque - Conviction under Section 138 of Negotiable Instruments Act - Presumptions under Section 118 and Section 139 of Negotiable Instruments Act - Burden to prove - invocation of revisional jurisdiction - HELD THAT:- It is a trite law under Section 139 of the Negotiable Instruments Act that the Court must presume unless the contrary is proved, that the holder of a cheque received the cheque for discharge, in whole or in part, of the debt or liability. It is also well settled that in complaints under Section 138 of Negotiable Instruments Act, the Court must presume that the cheque had been issued for a debt or liability, however, this presumption is repeatable. The burden of proof that cheque has not been issued for a debt or liability is on the accused.
The petitioner/accused has failed to prove that cheque was not signed by him, in these circumstances, it is to be presumed that the cheque had been made for consideration and the holder of the cheque received the cheque for discharge in whole or in part of debt or liability. Mere on the ground that the earlier Manger has been transferred and the witness who has been examined by respondent-Bank did not have personal knowledge about the transaction, it cannot be said that the respondent-Bank has failed to prove its case because the witness has proved all relevant documents in respect to transaction between the petitioner/accused and the Bank including the cheque issued by petitioner/accused.
It is well settled that while exercising the revisional jurisdiction, findings of fact recorded by lower court should only be intervened when the same is perverse. The revisional court should not appreciate or re-appreciate the evidence. In this case, there is concurrent findings of two Courts below based on appreciation of evidence in respect to the basic ingredients of offence under Section 138 of Negotiable Instruments Act. The defense of the petitioner has not been proved, therefore, learned Courts below have not erred in convicting the petitioner under Section 138 of Negotiable Instruments Act.
The present criminal revision fails and is hereby dismissed.
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2024 (10) TMI 318
Dishonour of cheque - maintainability of proceedings - account of the drawer company was blocked/frozen by the order of IT Department prior to the presentation of cheques - whether the petitioners can be held liable under Section 138 of the NI Act on the dishonour of cheque due to the account being frozen/blocked by the order of IT department?
HELD THAT:- Section 138 of the NI Act makes it clear that it is not every return of a cheque unpaid which leads to prosecution for an offence under the Act. For the said purposes, the cheque must have been returned “unpaid” by the banker either because the amount of money standing to the credit of that account is insufficient to honour the cheque or that the cheque exceeds the amount arranged to be paid from that account by an agreement between the account holder and the bank - The complaint, in the present case, does not state that the cheque was dishonoured on account of either of the two grounds on which liability under Section 138 of the NI Act can be made out.
A person commits an offence under Section 138 of the NI Act when he draws a cheque from an account maintained by him in a bank for discharge of any debt or any liability and the cheque is returned unpaid for the reason of the insufficient credit in the account. It is an admitted case as stated in the complaint filed by the complainant before the learned MM that the cheque was dishonoured for the reason that the account was blocked by the order of IT department - attachment of the bank account of the drawer company had the effect of disabling the petitioners from operating or maintaining the said account. The petitioners could not exercise his right either to make a deposit or withdraw any money from the said account.
A person commits an offence under Section 138 of the NI Act when he draws a cheque on an account maintained by him for discharge of any debt or liability and the said cheque is returned unpaid for the reason of insufficient funds. In the present case, the account of the drawer company was blocked / frozen by the order of the IT department thus, the said account at the time of dishonour of cheque cannot be held to be maintained in the bank. Drawing a cheque for discharge of any debt or liability from an account which is not maintained by a person for the reason of it being frozen may amount to an offence under other statutes but cannot be termed as an offence under Section 138 of the NI Act.
For an account to be called as maintained by the drawer, it is essential that the he is in a position to operate the said bank account by either depositing the money or withdrawing the money therefrom. The account holder should be in a position to give effective instructions to his banker with whom the account is being maintained - In the present case, once the bank account has been attached by an order of the IT department, the same could not have been operated by the petitioners or be called to have been maintained by him.
The complaint being CC No. 29073/2016 filed by the respondent before the learned Metropolitan Magistrate for offence under Section 138 of the NI Act along with the consequential proceedings arising therefrom, is quashed - Petition allowed.
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2024 (10) TMI 317
Maintainability of the Original Petition seeking cancellation of Design Registration - Interpretation of the Designs Act, 2000 in relation to jurisdiction of the High Court - HELD THAT:- It is found that there is a departure from the earlier provision viz., Section 51A of the Act, 1911 which enabled an interested person seeking cancellation to approach the High Court at any time after the registration of the Design. However Section 19 of the Act, 2000, now expressly mandates such person seeking cancellation of Registration of a Designs to approach “the Controller” alone and Section 19 (2) provides an Appeal to this Court from any order of the Controller including any matter to be referred to the Controller for decision of this Court.
The provisions themselves permit an Application to be filed before the High Court. However, insofar as the Designs Act, even though the earlier Designs Act, 1911 enabled such Application to be filed before the Court, it has been taken away by the Designs Act, 2000 and by incorporation of Section 19, an Application for cancellation of Registration can be made only to the Controller and an Appeal against the the order of the Controller is also made available by approaching this Court. When an appeal is also made available to the aggrieved party by approaching this Court, it cannot be said that this Court can exercise concurrent jurisdiction alongwith the Controller.
There are no merit in the arguments advanced by the learned counsel for the petitioner that the ouster has to be express and in the absence of an express ouster, it has to be implied that the jurisdiction of this Court is available to be exercised by this Court, including entertaining an Application under Section 19 for Cancellation of the Designs.
The Original Petition filed before this Court is not maintainable and the petitioner has to necessarily approach the Controller having jurisdiction and canvass all its objections there - the Original Petition is dismissed.
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2024 (10) TMI 315
Seeking grant of regular bail - Illegal possession of Ganja - offence u/s 20/29 NDPS Act - whether the recovered material falls within the definition of “Ganja”? - HELD THAT:- The intention of the Legislature appears to be clear that in case of Ganja, if it is merely Category A i.e. a homogenous mixture of flowering buds and fruiting tops, then the same would fall within the meaning of “Cannabis”, however, if it is merely Category B i.e. a homogenous mixture of seeds/leaves/stalks without the fruiting tops and buds, then the same would not attract the provisions of the NDPS Act.
From the framework of the entire NDPS Act and a reading of S. 2 (iii)(b), it emerges that if the material seized is a heterogenous mixture/Category C, constituting of Category A mixed with Category B, the placebo material such as stalks/leaves/stems (Category B) would not constitute an actual part of the drug and only the actual content and weight of the narcotic drug (Category A) would be relevant for determining whether it would constitute small quantity or commercial quantity.
Evidently, the present case is of a recovery falling within Category C. The Chargesheet records that when the Petitioner/Ravina was apprehended, blue coloured plastic polythene bag was recovered from her which contained grass-like flowery-leafy material along with its stems, which appeared to be “Ganja” and was seized vide the seizure memo. On weighing, the recovered Ganja on the electronic weighing machine, the total weight of the quantity recovered, was about 24.145 Kg - It has been consistently held that if there is a prima facie discrepancy in what was seized and what was analysed and weighed and there are reasonable grounds to believe that the petitioner is not guilty of offences dealing in commercial quantity. Consequently, the rigors of Section 37 of the NDPS Act, 1985 for grant of regular bail, would not become applicable.
Admittedly, the petitioner has not been involved in any other crime previously and has clean antecedents. Moreover, there is nothing to show that the petitioner is likely to tamper with the evidence or influence the witnesses. Considering the background, it can also not be said that she is a flight risk.
Considering the nature of allegations and the petitioner’s clean antecedents, coupled with the fact that the trial is still ongoing, the present petition is allowed and the petitioner is admitted to regular bail registered under Section 29 read with Section 20(B)(ii)(c) of NDPS Act, 1985 at Police Station Badarpur, Delhi, upon his furnishing a personal bond in the sum of Rs. 25,000/- and one surety of the like amount to the satisfaction of the learned Trial Court, and further subject to fulfilment of conditions imposed - bail application allowed.
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2024 (10) TMI 213
Interpretation of the Clause 10 of the NIT dated 16.08.2023 - Rejection of Technical bid of the Appellant, while accepting the Technical bid of the Respondent no. 8, Company - Respondent no. 8, Company failed to comply with the mandatory requirement of submitting the important documents.
Whether the Respondent Bharat Coking Coal Limited (BCCL) was justified in rejecting the Technical bid of the Appellant, while accepting the Technical bid of the Respondent no. 8 - Company, and declaring it to be successful bidder, though the Respondent no. 8 had not complied with the mandatory requirement of submitting the important documents relating to the qualification criteria as contained in Clause 10 of the Notice Inviting Tender (NIT) dated 16.08.2023, and thereby had failed to qualify the Eligibility criteria laid down therein?
HELD THAT:- From the bare perusal of the Clause 10, it clearly transpires that the Bidders were required to furnish the information and the scanned copies of the documents relating to qualification criteria particularly to substantiate their Financial capacity. For the purpose of substantiating Financial Capacity, the Bidders were obliged to submit the scanned copies (self-certified and notarised/certified) of the Audited Annual Reports for the last three financial years as chosen by the Bidder, comprising of the audited balance sheets and profit and loss accounts of the Bidder, along with other documents as stated therein. This was the mandatory requirement of the NIT, the same being related to the qualification criteria as also transpiring from Clause 2.2.5 of the RFB.
Admittedly, the Respondent No.8 had not submitted the scanned copies of its audited Annual Reports for the last three financial years, at the time of submitting/uploading the bid documents, before the last date fixed i.e 01.12.2023 and the same were submitted on 17.04.2024 only when the clarification was sought from the Respondent No.8, after the Technical bids were opened on 04.12.2023.
When the Technical bid of the Appellant was rejected by the Respondents on 06.05.2024 on the ground that it did not comply with the Clause 10 of the NIT namely Part I/ Cover I Other Important Documents (OID) Point No. 02 Appendix II (Power of attorney for signing of bid), there was no justification on the part of the Respondent authorities for accepting the Technical bid of the Respondent No.8, which clearly was not in compliance with the same mandatory Clause 10 of NIT. The Respondent BCCL has miserably failed to justify as to how the Technical bid of the Respondent no.8 was accepted when it had not submitted the requisite important documents related to the qualification criteria as mentioned in Clause 10 of the NIT.
There cannot be any disagreement to the legal proposition propounded in catena of decisions of this Court relied upon by the learned counsels for the Respondents to the effect that the Court does not sit as a Court of Appeal in the matter of award of contracts and it merely reviews the manner in which the decision was made; and that the Government and its instrumentalities must have a freedom of entering into the contracts. However, it is equally well settled that the decision of the government/ its instrumentalities must be free from arbitrariness and must not be affected by any bias or actuated by malafides. Government bodies being public authorities are expected to uphold fairness, equality and public interest even while dealing with contractual matters.
The impugned decision of the Respondent – BCCL dated 06.05.2024 rejecting the Technical bid of the Appellant and further declaring the Respondent no.8 as successful bidder is set aside. Any action/ process undertaken or agreement entered into pursuant to the said decision also stand set aside. It shall be open for the Respondent – BCCL to initiate fresh tender process for the Project and to process the same in question in accordance with law.
Appeal allowed.
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